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CORONAVIRUS (COVID-19) - LEAVE AND OTHER ARRANGEMENTS FOR IMPACTED EMPLOYEES


Remember that there are a number of different leave and other arrangements you can put in place during the Coronavirus (COVID-19) crisis for your employees and to try to mitigate the impact it will have on your operations and workforce. These will likely vary depending on each individual case at this stage given the variables, as well as the terms of your relevant industrial instruments (Modern Award/Enterprise Agreement).

LEAVE ARRANGEMENTS

The types leave arrangements that may be utilised (paid and unpaid), include:

  • Personal/Carer’s Leave;

  • Compassionate Leave;

  • Annual Leave;

  • Agreed advance on Annual Leave;

  • Long Service Leave;

  • Approved Leave Without Pay;

  • Special Leave With Pay;

  • Special Leave Without Pay.

Remember that the requirements applying to each type of leave are different, and will be governed by a range of relevant provisions in the Fair Work Act 2009 (Cth) (FW Act), any relevant industrial instrument (Modern Award/Enterprise Agreement), employment contracts and/or relevant company policies and procedures in place in your business. It will there be important for your business to understand the relevant requirements and obligations, to ensure compliance.

What about casual employees?

Aside from the 2 days unpaid carer’s leave under the FW Act, casual employees are not entitled to be paid when they do not work. Casual employees are instead paid a casual loading (usually 25%) instead of paid leave.

Remind casual employees that are impacted that they may be entitled to Government support and to check directly with Services Australia.

What about independent contractors and labour-hire personnel?

Independent contractors and labour-hire personnel are not employees.

Independent contractors do not accrue paid leave entitlements under the FW Act from your business. You should check the relevant contractual arrangements you have in place with each contractor if COVID-19 will impact on them being able to continue to perform their services under their contract with you, and obtain legal advice if required. If the contractor is employed by another business, the contractor should check with their employer with regards to leave/other arrangements they may be able to access during this time if their services are interrupted.

Labour-hire personnel are employees of the relevant labour hire business that has placed them at your site, and they are not your employees, so they do not have leave entitlements under the FW Act from your business. However, whilst they are at your site, you must ensure you take all steps to ensure their health and safety, so keep them up to date with the steps you are taking. Communicate directly with the relevant labour hire businesses with regards arrangements for those labour-hire personnel. Also check the terms of the services contract you have in place with those labour hire businesses, and obtain advice if required if services are to be impacted.

OTHER ARRANGEMENTS

In addition to leave arrangements for impacted employees, there are a range of other arrangements employers may need to consider putting in place to help reduce the risk of Coronavirus (COVID-19) spreading in your workplace, and try and minimise the impact on your business. These include introducing:

  • Working From Home Arrangements;

  • Flexible Work Arrangements – such as agreeing to staggered start and finish times to avoid peak hour travel, reduced hours of work or approved leave for example; in the event schools are closed down;

  • Staggered break times, to reduce the risk of large numbers of employees being in the same place at the same time (such as lunchrooms);

  • Increased individual work spaces for employees to avoid them working closely together or in confined spaces as much as possible;

  • Telephone and videoconferencing for meetings normally held in person;

  • Close downs;

  • Stand Down with Pay;

  • Stand Down Without Pay;

  • Directions to stay away from a workplace under Work Health and Safety Laws;

  • Restructure arrangements (including those to avoid/mitigate forced redundancies such as reduced days/hours, pay arrangements etc);

  • Redundancies.

Available advice and assistance

Employers must ensure that before they act in response to COVID-19 in their workplace that you check the relevant industrial instrument (Modern Award /Enterprise Agreement), employment contracts and/or policies you have in place and ensure compliance.

You will however need to be mindful of the anti-discrimination laws and the prohibition under the FW Act which protects employees who are absent from work due to a temporary absence or illness.

If you need urgent advice or assistance in managing the impact of COVID-19 in your workplace, please contact IR Legal Solutions to discuss.

These steps should not be a substitute for legal advice and are for information only. Employers should obtain advice that is specific to their circumstances and business operations, and not rely on this publication as legal advice.

 

IR LEGAL SOLUTIONS PTY LTD

INDIVIDUAL LIABILITY LIMITED BY A SCHEME APPROVED UNDER PROFESSIONAL STANDARDS LEGISLATION